Ga. drug testing likely to face legal challenges

By RAY HENRY | March 17, 2012 | 10:35 AM EDT

ATLANTA (AP) — A push to require drug tests for people seeking welfare payments in Georgia is nearly certain to be challenged in court if passed, as judges have already struck down similar laws in other states.

The U.S. Constitution bans governments from randomly drug testing people. The U.S. Supreme Court has defined special exceptions to that, when a serious public need outweighs a person's right to privacy. But exactly what falls within that exception can get murky.

"We're not naïve to the fact that it will receive a court challenge," said Rep. Jason Spencer, R-Woodbine, a testing supporter. Advocates say the bill is needed to protect children and make sure tax money isn't spent on illegal drugs, though opponents say such measures amount to illegal searches of people when there is no evidence they have committed a crime.

Drug testing requirements for people seeking welfare payments have been given initial approval in Georgia's Republican-dominated General Assembly. Similar bills requiring testing for people seeking welfare, food stamps, health care or other assistance are pending in at least two dozen other states. Such laws have already been deemed unconstitutional in Michigan in 2000 and Florida last year.

People who fail a drug test would lose their benefits at least a month until they test clean under one of Georgia's proposals. Those who fail several tests could lose their welfare money indefinitely under the strictest plan. Final details are still being worked out.

Budget officials estimate the testing program proposed by Georgia's Senate would cost anywhere from $126,000 to $393,000 annually. That cost takes into account the money state officials expect to save by not paying drug users.

About a quarter of the 19,200 eligible people who make new welfare applications annually could be tested under a Senate version of the bill, according to an analysis by budget officials. The state expects 17 percent — or 816 people annually — will fail drug tests, a rate based on a 2007 federal study that examined drug use by people ages 18 to 25.

There are variables. Some drug tests are more expensive than others. People who fail drug tests could also reapply. If they pass a subsequent drug test and are enrolled in welfare, that would decrease the savings for the state. And no one knows for certain how many people would fail the drug tests, especially because different studies produce different results.

Judges have made clear exceptions to privacy in previous rulings — for instance, the Supreme Court has said railroad employees can be tested if they are involved in accidents because of the need to maintain railroad safety and the link between drug abuse and accidents.

However, there are limits to how far the government can intrude on a person's private life, even when it comes to illegal drug use. In 1997, the Supreme Court struck down a Georgia law that would have required candidates for statewide office to pass a drug test to get on the ballot.

The nation's high court has not specifically ruled on whether drug tests can be a condition of getting government benefits, though legal scholars say the court's earlier decisions suggest it would be unconstitutional. So far, lower courts have agreed.

"The mere fact that you're getting a government benefit is not sufficient, I would think," said Peter Meyers, a law professor at George Washington University who studies drug testing laws.

In 2000, U.S. District Court Judge Victoria Roberts struck down a Michigan law requiring drug screenings for welfare applicants. She said the state failed to prove that its testing was a response to a public safety issue. While Michigan authorities said the testing would protect the children of drug abusers, Roberts said that argument could open the door to testing a much wider range of people getting government assistance. She called it a "dangerous precedent."

A three-judge appeals panel initially reversed that ruling, though Roberts' ruling ultimately stood when the full 6th U.S. Circuit of Appeals split on the issue.

Last year, U.S. District Court Judge Mary Scriven halted Florida's law until a lawsuit over it can be resolved. She ruled the state did not prove welfare recipients were more likely than others to abuse drugs. Furthermore, she was unconvinced the tests were needed to ensure tax dollars were not spent on drugs. That could lead to the government testing anyone who received any type of government benefit, which would be unconstitutional, Scriven said.

"The constitutional rights of a class of citizens are at stake," she wrote in her ruling.

Her ruling has been appealed to the 11th U.S. Circuit Court of Appeals in Atlanta.

In Georgia, one of the bill's sponsors said the proposal could overcome that reasoning. Sen. John Albers' legislation lists four reasons the state's need for drug testing outweighs privacy concerns: Making sure taxpayer money is not spent on illegal drugs, protecting children from the consequences of drug abuse, rehabilitating addicts and protecting public health.

Welfare applicants who fail the tests would not be reported to police, so it's not an unreasonable search, Albers said. Test results could not be released without an applicant's permission. If people want to avoid drug tests, they should not apply for welfare, he said.

He added that lawmakers have a duty "to make sure that the dollars we use — our state tax dollars — are not funding illegal activities."

Critics say the proposals could further harm already poor families. One version of the bill would deduct the cost of the testing from welfare payments. Poor children could still receive welfare payments if their parents failed a test.

In protest, Democratic Rep. Scott Holcomb has backed legislation that would force state lawmakers to take drug tests.

"We should lead by example and not just pick on part of society," he said.